The
petitioners are medical graduates. They are desirous of getting admitted to
Post Graduate Courses. Some of the petitioners took the test conducted by the
Government of Uttar Pradesh in January, 1995 for admission to Post Graduate
Courses in Medicine and Surgery. The others wanted to take the examination to
be held in January, 1996. They have moved this Writ Petition under Article 32
of the Constitution to challenge a notification issued by U.P Government
providing for reservation of SC/ST/OBC candidates in Post Graduate Speciality
and Super-Speciality Courses such as M.D and M.S. The main contention is that
this notification violates the fundamental right of the petitioners under
Articles 14,15 and 21 of the constitution.

It may
be noted that a similar Writ Petition was earlier moved challenging the
reservation of seats for SC/ST/OBC candidates for admission to Post Graduate
Courses in Medicine by some other persons. That Writ Petition (W.P. No. 771 of
1994) was heard along with another Writ Petition (W.P.No.631 of 1994 - Ashok
Kumar Thakur v. State of Bihar).

There
the challenge was to the criteria followed by the State of Bihar for determining the creamy layer
among the backward classes. The criteria followed by the State Of Bihar and Uttar Pradesh in determining
the creamy layer was struck down by a judgment dated 4th September, 1994. In the aforesaid two cases, however,
this Court did not have to consider the question of reservation to Post
Graduate Courses in Medicine. Liberty was
given to raise the question in apropriate proceedings in the following manner|-
"Mr. Venugopal, the learned Counsel appearing for the petitioners stated
that there are various other law points of this Writ Petition which were not
raised and he sought liberty to raise the same in appropriate proceeding, if necessary
. We order accordingly." Pursuant to the liberty granted in the aforesaid
judgment this Writ Petition has now been moved. The petitioners contend that
they belong to open category. They are all from the State of Uttar Pradesh. They have completed their M.B.B.S.
Course. Petitioners 1,2 and 3 have already taken their Post Graduate Medical
Entrance Examination held in January, 1995. They have been successful in
getting the qualifying marks in the examination and are likely to be called for
`Counselling'. Petitioners 4 to 6 are medical graduates who intended to take
the examination to be held in January, 1996.

In the
State of Uttar Pradesh by virtue of executive instructions issued from time to
time the following reservations have been made for admission to Post Graduate
Degree and Diploma Courses|- Scheduled castes ... 21% Scheduled Tribes ... 2%
Backward Classes ... 27% This practice has been in force for some time. What
gives rise to the present dispute is a circular/letter dated 31.8.95 written by
the Principal Secretary, U.P. Government, to the Director General Medical
Education and Training, Uttar Pradesh. In that circular, requirement of minimum
qualifying marks, which was 35% for written examination, has been cancelled for
the reserved seats. The contention of the petitioners is that even if these
special category candidates fail to score any mark in the test, they will be
eligible for admission as long as there are vacancies in the special
categories.

It has
been contended on behalf of the petitioners that the ultimate power to fix
norms and standards for admission to medical colleges vests in Medical Council
of India under the Indian Medical Council Act, 1956 read with Indian Medical
Council (Amendment) Act, 1993. So far as admissions to medical colleges are
concerned, the Regulations framed by the Medical Council of India under Section
33 of the Act will prevail over any law or executive instructions made by any
State Government.

The
ultimate power to fix norms for admission to post- graduate medical courses
vests in the State Government.

Section
20 of the Act states that the Medical Council may prescribe standards for Post
Graduate Medical Education for the guidance of Universities in the matter of
securing uniform standards for Post Graduate Medical Education throughout India. For this purpose the Central
Government has been empowered to constitute a Post Graduate Medical Education
Committee. The committee had gone into the matter of admission to Post Graduate
courses and recommended that the students of Post Graduate training should be
selected strictly on merit judged on the basis of academic record in the
under-graduate courses. All selections for post graduate courses should be
conducted by the Universities. The executive instructions of Uttar Pradesh
Government have done away with the requirement of obtaining the minimum qualifying
marks in the written examination for admission to post-graduate medical courses
for the candidates of reserved categories and are not in consonance with the
guidelines set by Medical Council of India.

When
this Writ Petition was moved, notice was issued confined to the question
whether removing the minimum marks altogether for the SC/ST/OBC candidates by
the Government of U.P. vide letter dated 31st August, 1995 was permissible in law. Time was
allowed for filing counter affidavit was extended by six weeks finally and it
was directed that the matter would be disposed of on the next date of hearing.

However,
when the matter was taken up on 13.12.96, it was found that counter affidavits
had not been filed. Time to file counter affidavit was extended once again with
the following directions|- "List the matter on 24.1.97.

No
further time shall be granted .

Meanwhile,
counter affidavits, if any, may be filed by the State of U.P. and Medical Council of India." However, no
counter affidavit had been filed by the respondents even when the case was
taken up for hearing on 24.1.97.

The
right of the State Government to reserve admission to Post Graduate Medical
Courses for SC/ST and members of OBC classes is not in the dispute. The only
dispute is that whether the state Government is entitled to do away altogether
with the system of obtaining minimum qualifying marks for getting admission to
these courses. By the impugned circular the State Government has dispensed with
the requirement of obtaining at least 35% marks in the written examination held
for admission to Post Graduate Degree and Diploma Courses.

The
validity of this circular has to be judged bearing in mind the various
decisions given by this Court from time to time in the matter of admission to
post-graduate courses.

In the
case of State of M.P. V. Kumari Nivedita Jain, (1982) 1 SCR 759, 15% of the
seats for various categories of medical courses in Madhya Pradesh had been
reserved for Scheduled Castes and another 108 seats were reserved for Scheduled
Tribes. When the result of pre-Medical Examination was published only 18 seats
in the category of Scheduled Castes and 2 seats in the category of Scheduled
Tribes could be filled because the other candidates could not acquire the
qualifying marks laid down under Rule. 20. 90 seats remained vacant in the
reserved category for the Scheduled Castes.

Likewise,
106 seats remained vacant in the category of seats reserved for the Scheduled
Tribes. Thereafter, the Government relaxed the requirement of qualifying marks
by 7%. As a result of this seven more candidates in the category of Scheduled
Castes and one more in the category of Scheduled Tribes got admitted. Faced
with the situation that even after relaxation a large number of seats reserved
for Scheduled Castes and Scheduled Tribes remained vacant, the State Government
passed an order on 9th September, 1980 for completely relaxing the condition
relating to the minimum qualifying marks for these two categories. The
Government Order was as under|- "The Government has taken a decision that
the candidates belonging to the Scheduled Tribes be admitted to the Medical
colleges in the seats reserved for them in accordance with the merit to be
determined on the basis of the marks obtained by them in the pre- Medical
Examination and that for this purpose, the condition relating to the obtaining
of minimum qualifying marks be removed." The High Court held that the
order violated Regulations of the Central Medical Council. The executive power
of the State under Article 162 could not be exercised so as to override the
statutory provisions, especially when the said provision was in a field
occupied by the Union List. It was observed that the executive power could be
used to supplement a law but not to supplant it. The High Court observed that
the total relaxation of minimum marks for the candidates belonging to these
reserved categories could not be supported under Article 15(4) being violated
of the Regulations framed by the Medical Council.

This
Court, on appeal after referring to the provisions of the Indian Medical
Council Act reversed the decision of the High Court and held|- "Regulation
I prescribes the eligibility of a candidate for admission to medical courses.
For maintaining proper standards in medical colleges and institutions it comes
within the competence of the Council to prescribe the necessary qualification
of the candidate who may seek admission into the Medical Colleges ...... On the
other hand the language in Regulation II which relates to selection of
candidates clearly goes to indicate that the Council itself appears to have
been aware of the limitation on its powers to frame any such regulation
regarding the procedure or process of selection of candidates for admission.
....The council itself appears to have apprehended that what is contained in
Regulation II is merely in the nature of a recommendation and this is evident
from the language used in Regulation II particularly when the same is
contrasted with the language used by the council in Regulation I. Regulation II
begins with the words "selection of students in a medical college should
be based solely on merit".

We are
of the opinion that the use of words "should be" in Regulation II is
deliberate and is intended the indicate the intention of the Council that it is
only in the nature of a recommendation." It was held that the authority of
the Council extended to the sphere of maintaining proper medical standards in
the medical colleges or institutions necessary for obtaining recognised medical
qualifications. It other words, the eligibility of a candidate who may seek to
get minimum education qualifications required of a student for getting
admission into a medical college. In other words, the eligibility of a
candidate who may seek to get admission into a medical college for obtaining a recognised
medical qualifications may be prescribed by the Council. But how the selection
was to be made out of the eligible candidates for admission into the medical
college was a matter which had necessarily to depend on circumstances and
conditions in a particular state.

It was
further held, "Though the question of the eligibility for admission into
the medical college curriculum may come within the power and jurisdiction of
the Council, the question of selection of candidates out of candidates out of
eligible to undergo the medical course does not appear to come within the
purview of the Council.

The
process of selection of candidates eligible for admission for filling up the
limited vacancies had no real bearing on the question of eligibility or
qualification for admission or on the standards of medical education." The
medical Council has not laid down that for the purpose of admission to
post-graduate medical courses, a further test will have to be conducted nor has
it laid down any qualifying marks which will have to be obtained in such tests.

The
position in law that emerges from this judgment is that all candidates who have
successfully completed their MBBS course are eligible for admission to the
post-graduate courses. But the Council has not done that. There may be more
candidates then seats available for admission to the post-graduate courses. For
this purpose, the State Government decided to hold tests for selection among
the eligible candidates. By reserving seats in these courses for certain
categories of persons the State Government has departed from the norm of merit
being the only criterion for selection. Eligible candidates of lesser merit may
be admitted to the post-graduate courses if they belong to any of the three categories
mentioned in the Government Notification. But what is essential is that even
the candidates of the three special categories must have an MBBS degree and
must obtain the requisite marks in the test to gain admission to MS, MD and
other courses. Here, the State Government has drawn a distinction between the
special category of candidates and candidates belonging to the open category.
All the candidates seeking admission to post- graduate medical courses will
have to pass a further test.

The
MBBS degree obtained by the candidates is the minimum qualification required
for taking the test. Even thereafter, the candidates will have to secure a
minimum percentage of marks in the admission tests to qualify for admission to
the post-graduate medical courses. If in the test the special category
candidates obtained lesser marks than the general category candidates, even
then they will be eligible for admission within their reserved quotes provided
they have secured the minimum qualifying marks in the admission test.

They
do not have to complete equally with the candidates belonging to the general
category.

But
the Government has gone one step further. It has now laid down that it will not
necessary for the special category candidates to obtain even the minimum qualifying
marks in the admission tests in order to gain admission to the post-graduate
medical courses. In other words, the seats reserved for the three special
categories of candidates will be filled up by the candidates will be filled up
by the candidates belonging to these three candidates special categories even
if they fail to obtain the minimum qualifying marks in the tests held. In other
words, the candidates belonging to the three special categories who have passed
the MBBS examination will have to take the test for admission to post-graduate
medical courses but that will be an idle formality because they will qualify
for admission to the post-graduate medical courses even though they do not
secure the minimum qualifying marks in the tests.

In our
view, this rule come in conflict with the direction given by the Post Graduate
Medical Education Committee that students for post-graduate training should be
selected strictly on merit. It was open to the State Government to say that
selection to the post-graduate medical courses should be on the basis of the
performance of the candidates in the MBBS examination only. But the State
Government has chosen to hold a test among the persons who have passed the MBBS
examination in order to select candidates for post-graduate courses. It has
laid down minimum qualifying marks for admission. Candidates belonging to the
three special categories who secure the minimum qualifying marks will have to
be admitted as long as their quota of seats is not filled up. But if the special
category candidates fail to secure the minimum marks in the tests held, it is
not open to the Government to say that even then the special category of
candidates must be selected for the post-graduate courses. If this is done, the
merit will be sacrificed together.

In our
view, the Government having laid down a system for holding admission tests, is
not entitled to do away with the requirement of obtaining the minimum
qualifying marks for the special category candidates. It is open to the
Government to admit candidates belonging to special categories even in a case
where they obtain lesser marks than the general candidates provided they have
got the minimum qualifying marks to fill up the reserved quota of seats for
them.

This
Court had occasion to go into this question in the case of Ajai Kumar Singh and
Others v. State of Bihar and Others, 1994 (4) SCC 401, in which one of us (B.P.
Jeevan Reddy, J.) was a member. It was held in that case, after considering the
judgment of this Court in the case of State of M.P. v. Kumari Nivedita Jain, (supra), that the state will
regulate the admission policy and at the same time adhere to the standards
determined by the Indian Medical Council. It was further observed in that case
that the impugned provisions of State of Bihar provided a uniform eligibility criterion of 50 per cent for general
candidates and for candidates belonging to "other backward classes"
and 40 percent for members of Scheduled Castes and Scheduled Tribes. Only when
students in requisite number were not available, the said criterion was reduced
to 40 and 30 per cent respectively. The small distinction in eligibility
criteria can, by no stretch of imagination, be said to impinge upon the
determination or coordination of standards in institutions of higher learning.

There
can be no doubt that the State may, if it feels necessary to do so, encourage
the backward classes by reserving the seats at the under-graduate level for
persons belonging to Scheduled Castes, Scheduled Tribes and other backward classes.
We have some reservation as to whether this policy of reservation can be
extended to the post- graduate level. It was held in the case of Dr. Jagadish
Saran and Others V. Union of India. (1980)
2 SCC 768. that | "The basic medical needs of a region or the preferential
push justified for a handicapped group cannot prevail in the same measure at
the highest scales of speciality where the best skill or talent, must be
handpicked by selecting according to capability. At the level of Ph.d., M.D.,
or levels of higher proficiency, where international measure of talent is made,
where losing one great scientist or technologist in-the- making is a national
loss, the considerations we have expanded upon as important lose their
potency... we may here extract the Indian Council's recommendation, which may
not be the last word in social wisdom but is worthy of consideration |
"Students for post-graduate training should be selected strictly on merit
judged on the basis of academic record in the undergraduate studies should be
conducted by the universities." The importance of merit being the only
criterion for admission to post-graduate medical courses viz. MD, MS and the
like was also emphasised in the case of Dr. Pradeep Jain and Others V. Union of
India and Others,(1984) 3 SCC 654 But this line of inquiry need not detain us
here in this case because the case of the petitioners is not that there should
be no reservation for the candidates belongings to the three special categories
mentioned hereinabove at the post-graduate level. Their contention is that
candidates belonging to the three special categories must be able to secure the
minimum qualifying marks in the admission tests in order to gain admission to
post-graduate medical courses.

If
they fail to secure even the minimum qualifying marks, then the seats reserved
for them should not be allowed to go waste but should be made available to the
candidates belonging to general category. This contention must be upheld.
Otherwise, to borrow the language used in Dr.

Jagdish
Saran Case (supra), this will be a "national loss" Before we part
with this case, we may refer to another judgment of this Court in Mohan Bir
Singh Chawla V. Panjab University, Chandigarh, 1996 (9) SCALE 351, in which it
was observed after a review of the case law that" the higher you go, in
any disciple, lesser should be the reservations - of whatever kind".

In
that view of the matter, this writ petition succeeds. The decision contained in
the letter dated 31.8.1995 addressed by the Principal Secretary, Uttar Pradesh
Government to the Director General , Medical Education and Training, Uttar
Pradesh directing that there shall be no minimum qualifying marks for Scheduled
Castes/Scheduled Tribes/Other Backward Classes candidates in the written
examination for admission to post-graduate and diploma courses is quashed. It
is directed that if the seats reserved for SC/ST/OBC candidates cannot be
filled up on account of failure of the candidates belonging to obtain the
minimum qualifying marks, then such seats should be made available to the
candidates belonging to the general category.

This
writ petition is disposed of with the above direction. There will be no order
as to costs.